Madras High Court
Raja D.V. Appa Rao Bahadur vs C.T. Senthilnathan on 25 August, 1987
Equivalent citations: (1988)2MLJ252
JUDGMENT Srinivasan, J.
1. K.C. Rajappa, learned Counsel appearing for the appellant in the second appeal and the petitioner in the revision petition submits that a decision in the revision petition will conclude the matter in the second appeal. The question which arises in the revision petition is whether the respondent therein is entitled to the protection of Tamil Nadu City Tenants Protection Act, 1921 (Act III of 1922) as amended by Act 2 of 1980. If that question is answered in favour of the respondent, S.A.No. 1097 of 1986 has to be dismissed as it arises out of a suit for damages for use and occupation. The Courts below have taken the view that the respondent is a tenant entitled to the benefits of the Act and dismissed the suit.
2. In the revision petition, the first contention urged by learned Counsel for the petitioner is that Tamil Nadu Act 2 of 1980 contains an express provision that it comes into force on 9-1-1974. Section 1(2) of Act 2 of 1980 reads thus:
The provisions of this Act, except Sections 9 and 10, shall be deemed to have come into force on the 9th January, 1974.
Section 3(ii) of the said Act reads as follows:
in Sub-section (3):
(a) for the portion beginning with the words "This Act shall apply" and ending with the words "such town or village" the following shall be substituted, namely:
This Act shall apply,-
(a) in the areas in which this Act is in force on the date of publication of the Madras City Tenants Protection (Amendment) Act, 1979 in the Tamil Nadu Government Gazette, only to tenancies of land created before that date;
The rest of the section is not necessary for our purpose.
3. It is contended by learned Counsel for the petitioner that a reading of Section 3(ii)(a) and Section 1(2) will clearly show that the amendment makes the principal Act applicable only to tenancies created after 9-1-1974 and before 3-3-1980, the later date being the date of publication of the Amendment Act. According to learned Counsel, the Act will not apply to any tenancy created between 1955 and 9-1-1974. The City Tenants Protection Act was originally passed in the year 1922. That Act was made applicable to tenancies created before 1922. The said Act was amended by Madras Act 19 of 1955 whereby the Act was made applicable to tenancies created before the coming into force of amending Act. In other words, it was made applicable to tenancies created before 1955. I am not referring to the specific date as it is not necessary for the purpose of this case.
4. It is contended by learned Counsel for the petitioner that in so far as the applicability of the Act to tenancies created before 1955 is concerned, that was left untouched by the Amendment Act 2 of 1980. Hence the principal Act would continue to apply to tenancies created before 1955. But according to learned Counsel, the principal Act would not apply to tenancies created after 1955 and before 9-1-1974. This contention is based upon the provisions of Section 1(2) of Amendment Act 2 of 1980. According to learned Counsel, it is only from the date on which Act 2 of 1980 is deemed to have come into force, it can be made applicable to tenancies of land. It is, therefore, the contention that any tenancy created before the date on which Act 2 of 1980 came into force will not be governed by the amending Act. In other words, learned Counsel submits that the Legislature thought it fit to bring into the purview of the principal Act only the tenancies created after 9-1-1974 and before 3-3-1980. Learned Counsel draws my attention to the statement of objects and reasons of Tamil Nadu Act 2 of 1980, which read as follows:
The Madras City Tenants' Protections Act, 1921 (Tamil Nadu Act III of 1922) provides protection against eviction of tenants, who in municipal towns and adjoining areas in State of Tamil Nadu have constructed buildings on others' lands, so long as they pay a fair rent for the land.
2. In G.O.Ms.No. 7283, Revenue, dated the 10th December, 1973, Government issued notifications extending the provisions of the said Act to the residential buildings in the townships in the State.
3. It was proposed to extend the provisions of the said Act to the non-residential buildings also in the township by issue of notification, as was done while extending the Act to the residential buildings in the townships. The Government were advised that the provisions of the said Act could not be extended to the townships by issue of notification and that the said Act has to be amended suitably to achieve the object. The Government were also advised that the notification extending the provisions of the said Act to the residential buildings of townships could not be sustained in law and that the above notifications should be validated by an amendment to the said Act.
4. It has also been decided to amend the said Act so as to secure its application over all areas from an uniform date. It has further been decided that the crucial date shall be the date of publication of the proposed amendment Act in the Tamil Nadu Government Gazette in respect of the tenancies in the areas to which the provisions of the said Act have already been extended to and in respect of tenancies in the areas to which the provisions of the said Act are proposed to be extended in future, the crucial date will be the date on which the said Act is extended to such area.
5. Learned Counsel also makes a reference to Sections 9 and 10 of the amending Act 2 of 1980 and submits that it was only with reference to the matters governed by Sections 9 and 10, Section 1(2) will not apply because of the express wording thereof. Learned Counsel submitted that the Legislation being an expropriatory legislation, that should be interpreted strictly and the scope of it should not be extend to tenancies other than those expressly covered by the said legislation. I do not see any substance in the argument of learned Counsel for the petitioner. Clause (ii) of Section 3 of the amending Act substitutes Section 1(3) of the principal Act in entirety. Section 1(3) of the principal Act as it stood before the Tamil Nadu Act 2 of 1980 was passed was in these terms:
This Act shall apply, in the City of Madras only to tenancies of land created before the commencement of the Madras City Tenants' Protection (Amendment) Act, 1955, and in any municipal town or village to which this Act is extended by notification under Sub-section (2), only to tenancies created before the date with effect from which this Act is extended to such town or village.
This Sub-section (3) of Section 1 has been entirely replaced by the new Sub-section (3). I have already extracted the contents of the relevant provision of new Sub-section (3). If that is incorporated in the principal Act, it will only mean that the principal Act would i apply to tenancies of land created before the date of publication of the Madras City Tenants Protection (Amendment) Act, 1979. The date of publication is 3-3-1980. Consequently, the principal Act would apply to tenancies created before 3-3-1980. Section 1(3) of the principal Act as it stands to-day after the amendment by Act 2 of 1980 does not limit the scope of the applicability of the Act to tenancies created between 1974 and 1980 and tenancies created before 1955. The language of the section is very plain, simple and clear. The section has to be understood as it stands now. Once the provision of Section 1(3) of the principal Act has been substituted by a new provision, it is only the new provision that exists in the principal Act as on date. The Act has to be understood with reference to the provisions as they are in existence now. Section 1(3) of the principal Act after the amendment of the same by Act 2 of 1980 makes it clear that the principal Act will apply to all tenancies of land created before 3-3-1980.
6. The necessity for giving retrospective effect to the Tamil Nadu Amendment Act 2 of 1980 from 9-1-1974 arose because of certain Government Orders notifying the extension of the provisions of the City Tenants Protection Act in 1973 to certain townships. At the time when the Government notifications were made, the Government was not authorised to extend the provisions of the Act to such townships. The validity of the Government notifications was therefore in doubt. Hence the Government thought of bringing in a legislation so that the notifications could be retrospectively validated. It is only in that view, it is provided that Tamil Nadu Act 2 of 1980 shall be deemed to have come into force on 9-1-1974. This is clear from a reading of Sections 9 and 10 of the amending Act. Section 9 provides that anything done or any action taken including any suit or proceeding instituted, decision or direction given, decree or order passed and any rights enjoyed or liability incurred under the provisions of the principal Act on or after the 9th January, 1974 and before the date of the publication of the amending Act on the footing that the principal Act was in force at the relevant time in the townships in that section shall be deemed to have been done or taken under the provision of the principal Act as amended by the Amendment Act. In other words, the Amendment Act has validated the proceedings taken in those townships as if the principal Act applied to those townships on the basis of the Government notifications. Eventhough Government notifications were not valid in extending the provisions of the Act to such townships, the Amendment Act validated the same by the deeming provision. It was because of that, the provision in Section 1(2) made the amending Act coming into force on the 9th January, 1974.
7. The second contention of learned Counsel for the petitioner is that the Amendment Act is only prospective in operation and it will not apply to pending proceedings. According to him, there is no express provision making the Act applicable to pending proceedings. He relies upon the decision of the Supreme Court in New Theatres (Carnatic Talkies) Ltd. v. N. Vajrapani . In that case, the Supreme Court had to consider an appeal which arose under the provisions of City Tenants Protection Act as it stood before the Amendment Act 13 of 1960. When the proceedings were pending, Amendment Act 13 of 1960 was passed and while dealing the question of the applicability of the Amendment Act to the pending proceedings, the Supreme Court had observed thus:
Thus question whether the case is governed by the unamended Section 9 or the amended Section 9 turns on the consideration whether the amendment of Section 9 was intended to operate retrospectively or must be construed as prospective only. Let us begin from the beginning. When the Madras City Tenants' Protection Act was extended to the town of Coimbatore in 1958, the respondent's suit for ejectment had already been filed and in fact was pending in appeal. It was never disputed between the parties that Section 9 would operate retrospectively and affect the rights of the parties in the pending appeal. It was on that basis that the appellant applied to the court for the benefit of the provisions of Section 9. The Act itself clearly laid down that Section 9 could be invoked in a pending suit or proceeding, for Section 10 declared that Section 9 among other provisions, would" apply to suits in ejectment... which are pending... in the City of Madras before the commencement of the Madras City Tenants' Protection (Amendment) Act, 1958, and in any municipal town or village before the date with effect from which this Act is extended to such town or village." It is to enable a tenant to secure the benefit of Section 9 in a pending suit or proceeding that Section 9(1) provides that such tenant may apply under that provision "within one month of the date of the Madras City Tenants' Protection (Amendment) Act, 1955 coming into force or of the date with effect from which this Act is extended to the municipal town or village in which the land is situated...." This provision was necessary to enable Section 9 to govern pending suits and proceedings. The other provision in Section 9(1) providing that the period of one month would commence from "the service on him of summons" applied to future suits and proceedings.
According to learned Counsel, there is no provision in Tamil Nadu Act 2 of 1980 corresponding to the provisions contained in Madras Act 13 of 1960 making it applicable to pending proceedings. I do not agree with this contention of learned Counsel for the petitioner for the reason that Section 5 of Tamil Nadu Act 2 of 1980 contains a provision enabling the tenant to file an application within one month from the date of the publication of Madras City Tenants Protection (Amendment) Act, 1979 or of the date with effect from which the Act is extended to the municipal town, township or village in which the land is situate. This provision amending the earlier provision of Section 9 to the effect that an application should be filed within one month from the date of coming into force of the Amendment Act of 1955 shows that this amendment is intended to govern pending proceedings. A tenant can take advantage of the amendment and file an application within one month from the date of publication of the Amendment Act i.e. one month from 3-3-1980. Reading that along with the amended provision of Section 10 of the Principal Act, it will be clear that the Act as amended by Tamil Nadu Act 2 of 1980 will apply to pending proceedings also. The decision of the Supreme Court relied upon by learned Counsel for the petitioner, does not therefore help him in this regard.
8. Learned Counsel placed reliance on another decision of the Supreme Court in Rafiquennessa v. Lal Bahadur Chetri . That was a case arising under Assam Non-Agricultural Urban Areas Tenancy Act. The Supreme Court laid down that where vested rights are affected by any statutory provision, the said provision should normally be construed to be prospective in operation and not retrospective unless the provision in question relates merely to procedural matter. The Supreme Court has also pointed out that the legislature is competent to take away vested rights by means of retrospective legislation. That general proposition will not help the petitioner in this case as there are express and sufficient provisions in the amending Act which will show that the principal Act as amended by Act 2 of 1980 will apply to pending proceedings and to that extent, they are retrospective.
9. The next contention urged by learned Counsel for the petitioner is that there is no tenancy of land created between the two parties viz., the petitioner and the respondent either by way of renewal or by way of fresh grant. According to learned Counsel, a tenancy of land should be created between the petitioner and the respondent in order to enable the respondent to claim the benefits of the City Tenants Protection Act. It is also submitted that the respondent is only a tenant-holding over on the same terms of tenancy between the petitioner and the prior tenant and the respondent will not be tenant as defined by the City Tenants Protection Act. To appreciate this contention, some facts have to be referred to. The petitioner gave on lease an extent of 9 grounds of vacant site on 7-8-1946 to AL.AR. Alagappa Chettiar for a period of twenty years. He gave another lease or another extent of 9 grounds to the same party for a period of twenty years on 1-8-1948. Both the leases are evidenced by registered documents. The original lessee sold one-half share in the theatre which was constructed by him on the land taken on lease to the respondent on 29-4-1959. The respondent purchased the other half share of the theatre in Court auction sale along with the leasehold rights on 1-10-1962. On 17-3-1963, the petitioner wrote a letter to the respondent acknowledging him to be his tenant. That letter is marked as Exhibit B-22. The relevant portion of the letter is as follows:
With reference to the above, and particularly with regard to your letter of the 20th February, 1963 and the enclosure mentioned therein, I am gratified to note that you have become the lessee, and that you undertake to be bound by the terms and conditions of the lease deeds between myself and Sree.AL.AR. Alagappa Chettiar Avl. in whose place you have stepped into. I also accept your undertaking not to claim back the rents in the unlikely event of your being held not to be the lessee under the terms of the leases in question.
Hence it is with the greatest pleasure that I am sending herewith the relevant stamped receipt for the period February, 1962 to March, 1963 (14 months) at the present rental of Rs. 655 per month, 13 of which have been paid by cheques in my name and the payment for March, 1963 being paid in cash to me, which I trust meets your satisfaction.
Kindly be pleased to pay future rents also in cash as far as possible for which I shall be very thankful.
10. On 25-2-1968, the petitioner wrote a letter to the respondent granting an extension of the lease from 1-4-1969 onwards. When the City Tenants Protection Act was amended by Tamil Nadu Act 24 of 1973, there was a provision therein enabling the tenants to file applications under Section 9 of the Act even in the absence of any proceedings for eviction against them. Taking advantage of that provision the respondent filed O.P.No. 377 of 1973 on the fie of the City Civil Court, Madras for a direction to the petitioner to sell the land to the respondent. That application was filed on 26-9-1973. That application was dismissed by the X Assistant Judge, City Civil Court, Madras by order dated 7-12-1978. The Court held that the respondent was an assignee, of the leasehold rights from the original lessee after 1955 of Section 9 of the Act. For coming to that conclusion, the learned Judge, relied upon the decisions of this Court in Kuppu Bai v. A. Rajagopal Naidu (1969) 2 M.L.J. 541; Abdul Mallik v. Fr. Joseph Sandanam ; and P. Ananthakrishnan Nair and Anr. v. Dr. G. Ramakrishnan (1977) 2 M.L.J. 98. The view taken by his Court at that time was, an assignee of leasehold rights after 1955 was not entitled to claim the benefits of Section 9 of the City Tenants Protection Act.
11. Against the dismissal of O.P.No. 377 of 1973, the respondent filed an appeal which was taken as C.M.A.No. 106 of 1979 on the file of IV Additional Judge, City Civil Court, Madras. When the appeal was pending, the petitioner herein filed O.S.No. 1448 of 1979 for recovery of possession against the respondent. In that suit, the respondent filed I.A.No. 12518 of 1979 under Section 9 of the City Tenants Protection Act for sale of the land in his favour. The petitioner filed another suit O.S.No. 6830 of 1980 for recovery of damages for use and occupation. It is from that suit, S.A.No. 1097 of 1986 which was referred to earlier has arisen.
12. The appeal filed by the respondent viz., C.M.A.No. 106 of 1979 was dismissed on 26-3-1980. Against that, the respondent filed C.R.P.No. 2114 of 1980 in this Court. When the revision petition came up for hearing on 28-4-1982, the respondent sought the permission of this Court to withdraw the revision petition with liberty to prosecute further I.A.No. 12518 of 1979 in O.S.No. 1448 of 1979 which was pending at that time. This Court granted permission and passed the following order:
The petitioner herein submits through his counsel Thiru M.R. Narayanaswamy that the petitioner has filed I.A.No. 12518 of 1979 in O.S.No. 1448 of 1979, on the file on the City Civil Court, Madras, for the purpose of directing the 1st respondent herein to sell the property under Section 9 of the City Tenants Protection Act. O.S.No. 1448 of 1979 is a suit filed by the 1st respondent herein to recover possession of the suit property. M.R. Narayanaswamy, learned Counsel appearing for the petitioner submits that permission may be given to withdraw the revision petition without prejudice to the rights of the petitioner to prosecute I.A.No. 12518 of 1979 in O.S.No. 1448 of 1979, on the file of the City Civil Court, Madras, and also reserve a liberty to both parties to raise all contentions available to them in law. Rajappa learned Counsel appearing for the 1st respondent (2nd and 3rd respondents being ex parte even before the Court below) is agreeable to this course. Accordingly the following order is passed.
Without prejudice to the rights of the petitioner to prosecute I.A.No. 12518 of 1979 in O.S.No. 1448 of 1979, on the file of the City Civil Court, Madras and reserving liberty to both parties to raise all contentions available to them in law, the petitioner is permitted to withdraw the Civil revision petition.
With the abovesaid observation the civil revision petition is dismissed as withdrawn. No costs. The trial court is directed to dispose of O.S.No. 1448 of 1979 including I.A.No. 12518 of 1979 as expeditiously as possible.
13. It is in this background of facts, learned Counsel for the petitioner submits that there was no tenancy of land created between the petitioner and the respondent. According to learned Counsel, the respondent was only continuing in possession under the terms of the tenancy entered into between the petitioner and AL.AR. Alagappa Chettiar and even if he may be taken to be a tenant under the provisions of the Transfer of Property Act, he may not be a tenant within the meaning of the City Tenants Protection Act entitled to the benefits thereof. According to him, there must be a document containing an express tenancy between the petitioner and the respondent treating him as a tenant of the petitioner and not as an assignee of the original lessee and thereby entitling him to continue in possession on the same terms. I do not find any substance in this contention. Section 2(4) of the City Tenants Protection Act defines a 'tenant' as a person liable to pay rent in respect of such land under a tenancy agreement express or implied and including any such person who continues in possession of the land after the determination of the tenancy agreement. It cannot be denied in this case that in 1963 when the respondent became the purchaser of the theatre and the leasehold rights, the petitioner acknowledged him to be a lessee. Even if it can be said that it would not amount to an express grant of lease or express creation of lease in favour of the respondent, that would certainly be an implied agreement of lease. Of course in my view, that is sufficiently an express agreement of lease. But for the sake of argument, if it is taken to be an implied lease, even then the respondent will be a tenant within the meaning of Section 2(4). He is admittedly liable to pay rent and has been paying rent. A reading of the letter dated 17-3-1963 marked as Exhibit B-22, the terms of which I have already extracted, will clearly show that the petitioner accepted the respondent as a tenant. Since the respondent falls within the definition of Section 2(4) of the Act, there is no difficulty in holding that the respondent will be entitled to the benefits of the City Tenants Protection Act.
14. Learned Counsel for the petitioner relied upon the decision of the Supreme Court in Gappulal v. Shriji Dwarkadheeshji . In that case, the question was whether an agreement as to reduction or increase in rent will lead to an inference of surrender of existing lease and grant of new lease. The Supreme Court answered the question in the negative and observed as follows:
4. As to the first question, we find that tout shops were let to the defendant in 1944 and the other two shops on the northern side of the staircase of the temple were let to him in 1945. The rent of the four shops was Rs. 150 per month. The rent of the other two shops was Rs. 65 per month. In paragraph 5 of the plaint it was pleaded that in 1953, the defendant agreed to pay a consolidated rent of Rs. 251-8-0 per month for all the six shops and to vacate them by July 31, 1957. In paragraph 5 of the written statement the defendant - denied this contract and alleged that in 1953 there was only an enhancement of rent. The first two courts found that in 1953 there was no new contract of tenancy, that there was only an increase of rent and that the other terms and conditions of the tenancy remained unaltered. This finding was not vitiated by any error of law.
5. A mere increase or reduction of rent does not necessarily import the surrender of the existing lease and the grant of new tenancy. As stated in Hill and Redman's Law of Landlord and Tenant, 14th Ed., Article 358 p.493:
But a surrender does not follow from a mere agreement made during the tenancy for the reduction or increase of rent, unless there is some special reason to infer a new tenancy, where for instance, the parties make the change in the rent in the belief that the old tenancy is at an end.
In the present case the first two courts on a review of the entire evidence came to the conclusion that the increase of rent did not import a new demise. This finding of fact was binding on the High Court in second appeal. The High Court was in error in holding that there was one integrated tenancy of the six shops.
It is clear from a reading of the above passages that the said decision of the Supreme Court will not apply to the present case.
15. Learned Counsel next relied upon the decision of the Privy counsel in Ranganatham v. Ethirajulu (1940) 1 M.L.J.24 : I.L.R. 1941 Mad. 172 : 185 I.C. 571 : 67 I.A.50 : A.I.R. 1940 P.C. 17. In that case, the tenancy was created by lease dated 18th October, 1912. The tenant was permitted to erect a superstructure and in fact had erected a superstructure. Then a fresh lease was entered into on 1st February, 1923 under which the land was leased for a term of ten years from 1st October. The tenant contended that the lease deed dated 1st February, 1923 did not create a fresh tenancy and the old lease continued to be effective. Repel-ling that contention, the Privy Council observed as follows:
The appellants maintain that the tenancy which terminated on 30th September, 1932 was created by the lease of 1912, the lease of 1923 being merely a continuation of the earlier lease, and they refer to the verbal agreement made being the expiry of the 1912 lease in support of this argument. But their Lordships are clearly of opinion, that, though the physical possession was continuous, the possession from 1st October, 1922 was attributable to a new tenancy, which was formally embodied in the lease dated 1st February, 1923, the increased rent thereby provided having been paid by them from 1st October, 1922, in terms of the verbal agreement for a lease. Their Lordships, accordingly, concur in the view of both the Courts below, that the tenancy here in question was not created before the commencement of the Act, and that the Act does not apply.
That was really a converse case in which the question was whether the second lease deed created a fresh lease or was only a continuation of the earlier lease. The Privy Council answered that the second lease was a fresh lease. No such question arises in the present case.
16. Having regard to the facts of this case, there can be no difficulty in holding that the respondent became a lessee of the petitioner at least from 17-3-1963 when the petitioner expressly acknowledged the respondent to be his lessee.
17. The last submission made by learned Counsel for the petitioner is as follows: The Tamil Nadu Act 2 of 1980 was passed when the earlier proceeding viz., C.M.A.No. 106 of 1979 was pending and the respondent did not claim the benefits of the Amendment Act in that proceeding. After the C.M.A. was dismissed against him, he filed a revision petition in this Court in which also he did not claim the benefits of the Amendment Act. In this Court, when the civil revision petition was withdrawn, there was no whisper that the respondent was entitled to the benefits of the Amendment Act. It was only in I.A.No. 13911 of 1982 filed in August, 1982, the respondent claimed for the first time that he was entitled to the benefits of the Amendment Act 2 of 1980. The petitioner submits that the respondent having failed to claim the benefits of the Act in the earlier proceeding, the present proceeding is barred by the rule of res judicata and that he is not entitled to make that claim. According to learned Counsel, this plea might and ought to have been raised by the respondent in C.M.A.No. 106 of 1979. As he failed to raise that plea, got an adverse decision in C.M.A.No. 106 of 1979 and withdraw the revision petition in this Court without making any reference, to the Amendment Act, the provisions of Section 11 of the Code of Civil Procedure would apply and the respondent's claim should be rejected on that ground. In this connection, learned Counsel for the petitioner invited my attention to an observation made by the Supreme Court in New Theatres (Camatic Talkies) Ltd. v. N. Vajrapani . I have already referred to the decision earlier in connection with the other point raised by the petitioner's counsel. The observation that is relied upon by learned Counsel is as follows:
11. We are also unable to accept the other contention of the appellant that the respondent should have invoked the benefit of the amended Section 9 in the appeal pending in this Court, and that not having done so it was not open to the respondent to apply for relief in the court below after the appeal had been disposed of by this Court. It is apparent that the scope of the appeal filed in this Court was restricted to the validity of Section 9 and Section 12 of the unamended Madras City Tenants Protection Act. It must be remembered that the order of Panchapakesa Iyer, J. which gave rise to that appeal, was made before the Act was amended in 1960, and This Court concerned itself solely with the validity of the unamended statutory provisions. In fact, a perusal of its judgment will show that this Court declined to consider the operation of the amendments brought about in 1960. In the circumstances, it is not possible to urge that the respondent might or ought to have insisted on relief under the amended Section 9 in the appeal pending in this Court. It was, therefore, open to the respondent after the disposal by this Court to apply to the Court below for an Order in terms of the amended Section 9.
It is submitted by learned Counsel that because the tenant had raised the point in that case and the Supreme Court refused to consider the same in the earlier proceedings the Supreme Court had observed that the plea of might and ought would, not apply. I do not find any support in the said observation of the Supreme Court to the present contention of the petitioner.
18. When the respondent was permitted by this Court in C.R.P.No. 2114 of 1980 to prosecute I.A.No. 12518 of 1979, it would only mean that he was permitted to prosecute the same in accordance with law. The law as it stood on the date of the order of the civil revision petition was in terms of the amended provisions of the Act. The Amendment Act having already come into force, the only provision that could have been applied by the trial court in I.A.No. 12518 of 1979 was the section as it stood amended by Tamil Nadu Act 2 of 1980. I have already held that the Amendment Act applies to pending proceedings. Once it is held that the amending Act is applicable to pending proceedings, it cannot be said that the respondent is prevented by any rule of res judicata from claiming the benefits under the amended Act because he had not putforth same in the earlier proceedings. There is another way of looking at the matter also. Once this Court permitted the respondent to withdraw the revision petition and work out his rights in I.A.No. 12518 of 1979. that would efface the finding given in the earlier proceedings. It is not open to the petitioner to rely upon the finding of the trial court or the appellate Court either in O.P.No. 377 of 1973 or in C.M.A.No. 106 of 1979.
If the earlier proceedings are effaced, then the only proceedings remains to be considered is I.A.No. 12518 of 1979. When that proceeding was taken up for consideration, the Act as amended would automatically apply and the only question to be considered is whether the respondent is entitled to the benefits of that Act. The plea of res judicata is therefore not available to the petitioner.
19. It is not as if there was any decision by this Court negativing the claim of the respondent to the benefits of Section 9 of the Act. If there was such a decision, it could have been contended by learned Counsel for the petitioner that it will operate as res judicata. In the absence of any decision of this Court against the respondent, there is no question of applicability of principle of res judicata in the present proceeding.
20. Thus I reject all the contentions raised by learned Counsel for the petitioner. Consequently, this revision petition has to be and is hereby dismissed.
21. As stated already, the only question involved in the second appeal is, whether the appellant is entitled to claim damages for use and occupation. As it has been found in the civil revision petition that the respondent therein, who is the respondent in the appeal, himself being a tenant under the petitioner and is entitled to the benefits of City Tenants Protection Act, the claim for damages for use and occupation as against him is unsustainable. The Courts below have rightly negatived that claim and dismissed the suit. The second appeal has to fail and is dismissed. There will be no order as to costs. In both the appeal and the revision petition.